Discovery Flashcards
What are the required disclosures?
- Initial disclosures
- Expert witnesses
- Pretrial required disclosures
What are the initial disclosures? (4 things)
- Identities of persons with discoverable information the disclosing party may use to support claims or defenses
- Copies or descriptions of documents and things the disclosing party may use to support claims or defenses if in its control
- Computation of money relief and documents/ESI supporting it
- Insurance coverage
How long do parties have to make initial disclosures?
Within 14 days of the Rule 26(f) conference
What do you have to disclose about expert witnesses? (Witnesses who will be used at trial)
Identity
A written report prepared by expert witness
What must the expert witness report include?
- Opinions expert will express;
- Bases for expert’s opinions;
- Facts used to form opinions;
- Expert’s qualifications; AND
- Amount of payment to expert
What are pretrial required disclosures?
Detailed information about trial evidence including:
- Identity of witnesses to testify (live or deposition) AND
- Documents/ESI/etc. to be introduced at trial
What information must be given about people identified in initial disclosures?
- Name
- Telephone number
- Subjects on which they have information
What happens if a party fails to identify somebody required in initial disclosures?
Party cannot use that witness in the case UNLESS the failure to identify was substantially justified or harmless
What are the discovery tools?
- Depositions
- Interrogatories
- Requests to Produce
- Medical exam (physical or mental)
- Request for admission
What are the limits on deposition?
Cannot take more than 10 depositions or depose the same person twice without court approval or stipulation
Depositions cannot exceed one day of seven hours unless court orders or parties stipulate
What information must a deponent offer testimony from?
Present recollection (No requirement to review files/notes)
How can individuals be identified for deposition?
Request identification of the relevant person
Notice the other party and describe matters for examination (other party must bring the right person)
Who can be deposed and how do give notice to that person? (Parties) (Non-parties)
Parties: notice of deposition
Non-parties: subpoena
What is the farthest a non-party can be required to travel to have deposition taken?
100 miles from where non-party resides or is employed
What is a subpoena “duces tecum”?
Bring requested materials
How can you use a deposition be used at trial?
Depositions can be used:
- To impeach deponent;
- For ANY purpose IF deponent is an adverse party; AND
- For ANY purpose IF the deponent is unavailable for trial, UNLESS absence procured by party seeking to introduce the evidence
What are the requirements of interrogatories?
- Can only send to parties
- Must answer from information reasonably available
- Must respond within 30 days from service
- Maximum of 25 questions (including subparts)
What information must an interrogatory be answered from?
Information reasonably available to you
How long does a party have to respond to an interrogatory?
30 days from service
What is within the requests to produce?
Documents and things, including ESI, or to permit opposing party to enter designated property to inspect, measure, etc.
What is ESI?
Electronically Stored Information
How long does a party have to respond to a request to produce?
30 days from service (same as responding to interrogatory)
What can a party say in response to a request to produce?
That the material will be produced OR
Assert an objection
What are the requirements for a medical exam?
Must get a court order and show:
- Person’s health is in actual controversy, AND
- Good cause
Who can be ordered to undergo a medical exam?
- A party to the proceeeding, AND
- Someone in the party’s custody or legal control
What happens if examined person requests the medical report?
He waives any privilege concerning testimony about ALL examinations of that medical condition
Will have to produce reports of his own doctors concerning the medical condition
What are the requests for admission?
Written request that requires somebody to admit or deny a specific comment
What are the discovery tools that can only be used on parties?
Interrogatories
Request for admission
When should you file a subpoena?
Whenever you are requesting something from a non-party
On whom may requests for admission be served?
Parties only
How long does a party have to reply to a request for admission?
30 days
How must a party reply to a request for admission?
In writing
By admitting, denying or objecting
What happens if a party fails to deny or object in writing to a request for admission?
It is counted as an admission
What does every signed discovery request certify under threat of sanctions?
- Discovery is under oath;
- Request is warranted;
- It is not interposed for improper purpose; AND
- Not unduly burdensome
What are your continuing obligations throughout and after discovery?
Duty to supplement incomplete or incorrect responses to required disclosures, interrogatories, requests for production, or requests for admission
(N.B. Supplements to discovery need not be requested, you still must do them!)
What can you discover?
Anything relevant to a claim or defense
What is considered relevant?
Things that are reasonably calculated to lead to the discovery of admissible evidence
(Includes things that are broader than admissible at trial)
What is the only signed document not subject to Rule 11 sanctions?
Discovery documents (covered by their own sanctions)
When is the defendant’s net worth discoverable?
When the plaintiff is seeking punitive damages
What is the doctrine of proportionality?
Court can limit discovery if:
- Request is cumulative, or
- Burden outweighs the importance of the issue
What happens when discovery request lacks proportionality but there is still good cause?
Court can order production and allocate the expense between the parties
On what bases can you object to discovery?
- Relevancy
- Proportionality
- Privilege (incl work product)
- Qualified privilege
What is work product?
Trial preparation materials (materials prepared in anticipation of litigation/with an eye toward litigation)
What is qualified work product?
Parts of work product that may be discoverable (e.g., witness statements) IF opposing party can show:
- Substantial need OR
- That the info is not otherwise available
What is absolute work product?
No part of the work product can be discovered
(e.g., Mental impressions, opinions, conclusions, and legal theories)
How can you assert a privilege or work product?
- Claim the protection expressly AND
- Describe the materials in detail in a privilege log
(Privilege log must contain enough detail to allow the judge to determine whether the material is protected)
What happens if you inadvertently produce privileged or protected information?
Notify other party promptly
Other party must return, sequester, or destroy it, pending decision by the court about whether there has been waiver
Under what situations does a court get involved in discovery?
- When a party seeks a protective order;
- When a party provides partial response to discovery request; OR
- When there is no response to discovery request
When can you seek a protective order?
When discovery requests subjects responding party to:
- Annoyance;
- Embarrassment; OR
- Undue burden or expense
How do you obtain a protective order?
Certify that party tried in good faith to get the info without the court involvement (asked other side for a meet and confer)
What are the court’s options for protective order?
- Deny discovery
- Limit it
- Permit it on certain terms
What happens if the party has only served partial responses?
Move for order compelling answers plus costs (incl. fees) for the motion (must certify that you tried to meet and confer)
If order violated: Sanctions and maybe contempt (except for refusing medical exam)
What happens if the party has not responded to discovery?
Sanctions and attorney’s fees for the motion
No need to compel answers first
What are the possible sanctions for discovery non-compliance? (5)
- Establishment order
- Strike pleadings of the disobedient party
- Disallow evidence from the disobedient party
- Dismiss plaintiff’s case (if bad faith is shown)
- Enter default judgment against defendant (if bad faith is shown)
Can you get sanctions for loss of ESI?
Yes, if it’s lost in routine, good faith operation the system (BUT even then, only in exceptional cases)
